THE PRESIDENT: Not necessarily.
MR. WOOLEYHAN: Or any means?
THE PRESIDENT: So we have the information, I think if we have a certificate that should be satisfactory.
There is one other matter I will call attention to at this time. A great many requests have been made for the appointment and approval of assistants to defense counsel. We have granted every one of those requests, but in doing so I call attention to the fact that the rule forbids more than one defense counsel to be in this room at any one time. We haven't been enforcing that rule up to this time, but defense counsel are becoming so numerous, counsel and their assistants, that from now on the rule will be strictly enforced. Only one counsel representing a single defendant will be permitted in the room at one time.
MR. WOOLEYHAN: We inquire if defense counsel for Engert is prepared to commence cross examination.
DR. LINK: Yes, I am prepared to do so. With the permission of the Tribunal I begin my cross examination of the witness Father Wein.
BENEDIKT VEIN - Resumed CROSS EXAMINATION (Continued) BY DR. LINK:
Q Father, I should like to ask you first to speak slowly, and after answering any question -- that is, after my question at first to make a short pause.
A Yes.
Q I may assume, Father, that your affidavit which you have signed on 26 December, 1946, is still fresh in your memory?
A Yes.
Q Do you have it before you?
A No.
Q Would it help you if I hand you a copy?
A I would be grateful for that.
Q It is document NC 566, Exhibit 274 in Document Book 4-C. Witness, I want to ask you concerning the scheme in which you helped upon the instruction of the director of the institution. Tell me, please, what instructions concerning the selection of inmates were given to you by the director of the institution.
AAs much as I can recall, there were no specific instructions given about that, but we knew about that method before. As I have already stated previously today, it was nothing else but a sociological examination, and that was part of our work as chaplain of the institution. First of all, we had to develop the problem whether he was asocial or social, meaning the individual inmate, and there was also a question whether they were corrigible or incorrigible, dangerous or not dangerous to the public. But specific instructions wore not given. From experience, from years of experience still from the democratic era and later on from the Nazi era we have made these examinations.
Q Witness, you sand that the whole thing started in Berlin.
A Yes.
Q Didn't the director of the institution forward to you information received from Berlin with specific points of view?
A No.
Q Did you want to say something more?
A I cannot remember searches of that kind, because we had no insight into that secret decree. We were only ordered to help, to assist.
Q Yes. I would only like to know what was ordered.
A The examinations, those investigations, should be made to find out who was asocial.
Q And about the term itself, what one should understand by social and asocial, what one should take into consideration, about that nothing was said?
AAbout that nothing was said, because we knew already what was to be understood under these terms. Throughout years of practice we had become accustomed to think about these problems, and I said this morning that at every investigation of that kind the question was put in the end, "Is the man corrigible or incorrigible", d that would lead to the question that they were social or asocial.
Q I understood you this morning to say that there was a new method, a new method by which previously existing regulations had been modified. That seems to have been a mistake on my part, that impression. If I understand you correctly then, you say that you carried out an investigation on the basis of a routine which had existed for many years?
A Yes. But with the special direction given to investigate whether people were asocial or social, that goes further than just corrigible or incorrigible. May I explain that further. When we made those examinations, then in the end the result was a so-called prognostic, and that brought about three categories. One was corrigible, open for improvement. The other was questionable, endangered. And the third one was incorrigible, hopeless. That meant -- assumed on the basis of the investigation, and after these investigations we assumed in our recommendations that the individual who was investigated in the future in all probability would either prove good conduct, remain infected, or fall again. The latter was asocial. It was a question of bringing them back into society.
Q I understand you now, Father, but still it is not quite clear to me how that directive by the director of the institution came to you, that he did not toll you at all that an instruction had come from Berlin which included certain details.
A No.
Q That was not the case?
A No, I have not seen anything of the kind, have not heard of it. He himself was not quite clear how the natter should be conducted.
Q I see. Then if you say in your affidavit in describing that investigation, the work of examining the cases, if you speak of negative cases which you brought -- which you left to the director of the institution, then that judgment "negative cases" is based on your years of experience in examining such cases?
A I knew of many cases in advance. This once, for instance, will prove to be all right, and this one won't. On that basis I have selected 50 people who, beyond doubt, would not be among those in question, so that my conscience shouldn't be bothered in case that there should be any danger threatening these people.
Q The director of the institution whom you mentioned in the beginning of your affidavit as a man who not especially a friend of the clergy, that director, did ho agree right away that you took the good half of the files at the outset for yourself?
A Yes. He agreed from the outset because he also knew my misgivings.
Q Concerning the figures you have mentioned, Father, I should like to ask,is it correct that from the about 80 or 90 files which you mentioned in your affidavit, the 50 to 60 files which you put side are to be deducted and that then from the balance the Director's Institution marked six as asocial?
A That is correct.
Q Now, on the other hand, you say that after the investigation made by the Commission from Berlin, 100 were transferred in various shipments. Isn't that a misunderstanding? I should like to put my question in the following manner: that being transferred, according to the information you received of 100, doesn't that apply to several estimates of that kind?
Do you understand what I mean?
A I have never mentioned a definite figure--always approximately. It was impossible to give a definite figure. The first transfer, I assumed, were 20 to 30 approximately; the second shipment also approximately 15 to 20. One could not say that for sure. And as for the balance, I do not know how many there were in each individual shipment. For the total figures, I depend upon the statement of a witness, Hauptwachtmeister Prey, who always mentioned a figure of approxiamately 100 people.
Q One hundred people altogether who were transferred--criminals who fit the description of asocial?
A I said later in January, there were two more shipments going out. How many there were in these shipments, I do not know--but altogether about 100 people were transferred.
Q So we agree, Father, that the total transfer are not based on this one examination of files which you had made together with the director of the institution, and the investigation which was made a short time later by a Commision from Berlin which you mentioned?
A The first shipments, that is to say the people who were investigated together,they were again investigated by the Commission, you see. And all together, there may have been about 100 people because about a few ever 50--between 50 and 60--were investigated by myself.
Q I ask you Father, because in the same connection you answered a question put to you by the prosecutor. That question was as to how many prisoners remained after the so--called Engert selection, and that question you answered by saying there were about eight to ten of them who could not be transferred at the time.
A Yes.
Q Does that mean that all of the inmates who fitted the former requirements, that is, life term or at least protective custody for at least eight years--of all these, eight to ten remained in the institution?
A That means that of all those who had been investigated, these eight to ten people wore kept in the institution by the director of the institution.
Q By the director of the institution?
A Well they were just left over; they were not transferred for the time being.
Q But, Father, wasn't that the way it happened, that those who were transferred, if they proved to be useful and needed as artisans, couldn't they be kept by the management of the penitentiary?
A That I don't know. I don't know anything about that.
Q Therefore you could not deny the possibility that among these eight to ten who had been kept because they were needed, that there were people among them who also were slated to be transferred?
A Well they were people of the same type as the other--the same type of offenders--most of the murderers.
Q I have another question. I come now to the work of the commission from Berlin. You said this morning that you did not speak to any of the gentlemen who were in that commission nor did you see anyone.
A Neither do I know Engert. I never saw him--and the other gentlmen I saw as they crossed the street once and somebody in the office pointed out to me that they were the two gentlemen who had come with Engert; who worked together with Engert. Yes.
Q One of the two accomplices; as you said this morning, of Engert may have been Dr. Meier?
A Yes, Dr. Meier; and the name of the other; I cannot remember. It was mentioned but I don't know.
Q Now you said furthermore that you could not say; according to what points of view that commission worked. That is correct; isn't it?
A. Yes. That is to say, we did not know according to what principles they went to work because all our work was thrown out. We assumed, that is I did, but my superior told me upon my questioning him that all our work was good for nothing. He said he presumed that these people -- that was the opinion staled by Engert and the other gentlemen-- he presumed that these people -- meaning the inmates -in case of a revolution would become dangerous; that they would assume leadership. That was the reason.
Q. Yes. My main interest is to find out about your own observations in connection with the commission, how they worked, whether for instance each individual inmate was brought before that commission; you couldn't tell us whether there were rod of green or white slips used?
A. That I don't know. That happened in the office, and I wouldn't know.
Q. Could you tell us positively now that that commission at all chocked the previous work which you had done together with the director of the institution; that they saw the same files, or more or less the same files?
A. That I could not tell you -- not from my own observation, but I have heard -- I was told by the man who did the main work in the office, that is Hauptwachtmeister Prey, who told me he dealt with the political cases first of all, and that Dr. Meier and the other gentlemen dealt with the criminal cases. That I know.
Q, The examination of the so-called asocial, I don't know what you know about that, did not deal with the political cases at all. Therefore, it cannot be that this commission dealt with political and criminal -
MR. WOOLEYHAN: May it please the Court, I object to this lecturing of the witness. The testimony here is to be elicited from the witness, not to be exposited by counsel.
THE PRESIDENT: The objection will be sustained.
BY DR. LINK:
Q. Witness, do you happen to know, whether the cases which were to be examined, were criminal cases or also cases of political prisoners?
A. I know through that gentleman that not only criminal cases were dealt with but also political cases.
Q. Don't you know from your own work with the director of the institution whether there were also political cases among these?
A. At the moment, I could not remember a political case. As far as I was concerned. I dealt only with criminal cases.
Q. If I may summarize then, what you have stated on Page 2 of your affidavit, on the top of page 2, about the manner in which the commission worked: that is to say, that they went through all the files in a great hurry and throw everything out that you had done -- and that is not based on your own observations, but on informations which you have received from somebody else: and on the basis of that you made your statement. Isn't that correct?
A. That is true, but in a certain sense I know that the gentlemen were here only for a very short time. I know what a tremendous amount of work it was. It had been for us to go through these files, which in some cases consisted of entire books with all the export opinions attached. Sometimes we could work through only three cases in a day, if we were careful about it -- and we were careful about it. And the gentlemen, as much as I know, were at the most here only two days, and then they were all through. So if I say that they worked very fast, there is good reason to say that.
Q. To come bank to the two cases which you read this morning, if I am not mistaken, then the sexton -- your Catholic sexton -whom you mentioned as an example, that was Haff, wasn't he?
A. Yes. Haff.
Q. The one who testified here and who had been here sentenced for murder and pardoned?
A. Yes.
Q. Can you remember the name of the inn-keeper whom you also mentioned, who in his excitement had killed his wife?
A. I can tell you the name. His name was Wiesor, W-I-E-S-E-R. He was an inn-keeper of Brackelsrieth in the Bayrische Wald -- the Bavarian Forrest.
Q. Do you know that especially in cases of murderers, who were in a majority in the prison according to your statements, that in case of such examinations, the manner in which the act had been committed -
MR. WOOLEYHAN: I object. I don't remember as having been developed, either in direct testimony or thus far in cross, that the prison necessarily had a majority of murderers.
BY DR. LINK:
Q. Witness, you have stated here in the cross-examination about ten minutes ago that there were mostly, there were primarily murderers, or did I misunderstand you?
A. Well, if you consider it in the legal form, then there were manslaughter; that is what I meant, murder and manslaughter; cases of murder and manslaughter; there were mostly manslaughter, emotional cases of manslaughter; arson was also there; I remember one serious case of arson, but mostly there were rather serious cases, serious offenses; bloody offenses.
Q. Now another matter, witness in order to avoid a misunderstanding. You said this morning that in 1935 Amberg was changed from a prison for inmates who had previous convictions to a penitentiary for such who had no previous convictions, who were serving their first sentence.
A. From 1939 on -- when I came there in 1929 -- until 1935, it was a prison for repeated offenses, but all of them were people who had several previous convictions. In 1935 it became a penitentiary only for first offenders. Therefore, in order to speak in the language of an official of the penitentiary, there were people who well worth to take care of because their previous life had been clean.
Q. I put this question, Father, because the second half of the first page of your affidavit you emphasize that these people who had been punished for the first time were people who had at the most a punishment or sentence of one-half years.
A. That should be previous convictions.
Q. They were not prisoners who were supposed to stay there only one-half year; that can be seen clearly from the individual cases you have just described.
A. Yes. We in the penitentiary had people there from one year to life; that was a wrong impression on the part of the person who wrote it down; by people with previous convictions or no previous convictions, we don't mean people who had no convictions at all.
Q. Excuse me, I wasn't mistaken on it?
A. People with first convictions; we don't mean people have no previous penalties at all such as we find it very frequently in cases of murders, but also people who had punishment for penalties or offenses previously, that changed. The Ministry modified that decree that dealt with the term individuals with first convictions; that is, for instance, when the old previous conviction amounted to not more than one-half year, they still considered the man with the first conviction; did you understand?
Q. Yes, I knew that; I just wanted to clarify it. The next question is the following; The question of the treatment of Poles. You have stated that the Poles had not come voluntarily from their homeland to Germany. Would you conclude from that; you concluded that from the fact that they were prisoners in the prison, in the penitentiary at Amberg?
A. Yes.
Q. I agree with you as far as that goes, but I want to ask you if there was not a misunderstanding in answering the question of the Prosecution. Could you say that those Poles who were in Amberg to serve a sentence, or those who after heir sentence at this time had been on the basis of the decree concerning the Poles, were not released, that before that time, maybe years before that time, when they had come to Germany as Poles from Poland, that they didn't come voluntarily?
A. I told you most of these people were brought in from the penitentiary at Schiratz, and that was in Poland. Therefore, I presume that these people had not been brought from Germany to Schiratz, but that these people had been convicted in Poland, and through the penitentiary Schiratz were brought to us.
Q. Yes, I see; that is clear. Your description of the regrettable conditions of the Poles in the penitentiary, especially their lack of food, their physical condition apparently; their apparently bad physical condition; do you remember that very well?
A. Yes, very well.
Q. In that connection could you tell us whether those conditions wore consequences of the treatment at the penitentiary of Amberg, consequences of the Administration at that penitentiary or, depended upon the condition in which they were brought in?
A. These Poles were not treated any differently in the penitentiary than the other residents asmuch as I know. We had two wardens who were brutes, and repeatedly beat the Poles; the superintendent prohibited that, and these two wardens were later sent to Dachau; one I believe was turned over to the Poles later; but serious mistreatment, by that I mean brutal beatings so that a man cannot get up again, such as happened in the concentration camps, no, that I cannot remember. If one just gave the other one, if one just gave a prisoner a blow in the face, that was a very serious matter, so it was not the consequence of the treatment at the prison. Food, of course, was scarce. I was told that they received the same food as the Germans did, but there was something else according to the decree concerning Poles "which I did not happen to know in detail. These people could be held to work longer hours than the Germans, and, have to work longer hours; as much as I know, on the other hand, the main reason that I expressed in my statement was in my opinion the long absence from home; that they were thrown out into a different world, without having any ground, under their feet; bad and insufficient food for a long time, and that in the younger years of their lives when good food is particularly needed, so they lost all their resistance.
Q. May I summarize the statement by saying that the treatment, including food, of the Poles of those who were in the penitentiary at Amberg was principally not worse than that of the Germans, the German inmates; could one say that with that limitation concerning the longer hours of work?
A. Well, yes, but of course that as essential.
Q. Couldn't you state that elderly from your own knowledge?
A. I couldn't state it clearly because, as you know, I wanted to be quite precise; I would have to been in the kitchen because there they weighed the food by grams, and those were the people who can actually tell us.
I could not say precisely whether they got exactly the same as the Germans, and I was only told by the man in the kitchen that they got the same as the others did.
Q. All right. Did you perhaps hear any complaints from your Polish colleagues about this point?
A. That I could not say; no.
Q. Then I have one last question, Father Wein. In your affidavit, on the page before the last, that is page 3, at the end of the first third, of the page, there is a mentioning that Engert was a crazy Nazi. I am not interested now in information which you may have received from others; I only want to ask you whether, from your observations, you could state any facts which would justify, which are likely to justify that judgment?
A. I know only one thing, that at that time when he came to Amberg, or maybe it was later, I cannot say that with certainty, that he made a speech in the town hall about Nazi questions; but he came from Berlin. In other words, if a man comes from Berlin and speaks in the town hall of a city of about 60,000 inhabitants, then he certainly isn't a small-fry Nazi.
Q. Then, in your opinion, he must be a crazy Nazi if he is not a small-fry Nazi?
A. Well, if you consider that so important, then I may be able to correct that, but we don't make too much of a difference there. If a man is a big Nazi, then he is usually a crazy Nazi, because the entire idea was crazy.
DR. LINK: I have no more questions.
MR. WOOLEYHAN: May the witness be excused? I have no questions.
THE PRESIDENT: The witness may be excused.
MR. KING: First, may I say that Defense Counsel has completed the examination of the Document NG-265, which was offered as Exhibit 392 prior to the lunch recess, and it will now be handed up to the Secretary General.
THE PRESIDENT: Is that the document that was so obscure--that was-
MR. KING: No, Your Honor. That was the document which was of considerable length and Defense Counsel wanted to examine it.
We asked that it be submitted after lunch.
THE PRESIDENT: The document will be received in evidence.
MR. KING: As to exhibit 393, which was a dim photostatic copy, we will endeavor to supply a better copy, but at the moment I am not able to say whether that will be possible. The next exhibit, 397, will be document NG-434, which is to be found beginning on page 76 of the English text and on page 82 of the German text. This is a letter from the President of the Court of Appeal in Bamberg, dated 1 March 1941, and addressed to the State Secretary, Dr. Schlegelberger. The letter is a report, and two paragraphs of which are concerned with the Euthanasia Program. I think it is of sufficient interest, those two paragraphs are of sufficient interest to be read at this time. The writer Buering, has the following to say: I read from the third paragraph in the letter beginning on page 79 in the English text and page 83 in the German:
"The liquidation of the insane is still a subject which is being heatedly discussed. Whatever one's attitude towards the elimination of human beings unfit for life may be, such a measure must depend on a series of safeguards which tend to exclude every abuse and every mistake as well as humanly possible and above all the order for such a measure which must deeply interfere with the right of the individual and the family must be based on public law. So far such a law has not been issued. Throughout wide circles of the population there is a great unrest caused by this state of affairs and that, not only among follow-citizens who count an insane person in the family.
"Such conditions arc untenable indefinitely in a state, based on law because they involve numerous dangerous uncertainties and cause the most absurd rumors which, in turn, are a source of continuous and considerable uneasiness of the population."
Then it goes on to state that the people are commenting on this in one way or another.
That is all of this document which we wish to call attention to at this time, and we, therefore, offer the document, NG-434 as exhi bit 397.
DR. BEHLIUG: The photostat copy which we have before us and Which shows the letter, which the President of the District Court in Bamberg sent to the defendant Schlogelberger, docs not prove for a fact that the letter reached the Under Secretary, the then Under-Secretary, Dr. Schlogelberger. In particular it cannot be seen that Schlogelberger actually read that letter. Therefore, if it should be used as evidence against the defendant Schlogelberger, then on the part of the Prosecution it would be necessary to prove that Dr. Schlogelberger actually received that letter or at least got knowledge of the contents of the letter. However, if the evidence should only be presented to characterize auditions at that tine, then I have no objections against it.
THE PRESIDENT: That question has been before the Tribunal many times. The document will be admitted.
MR. KING: With the document which has just been introduced, just offered, NG--434 as exhibit 398, I neglected -
THE PRESIDENT: (Interposing) Exhibit 397.
MR. KING: 397, excuse me. I have neglected to call the attention of the Court to a second letter which is also part of that document. It is written also by Duering, dated 2 January 1941, and it was addressed to the Reich Minister of Justice, Dr. Guertner. In that letter, on page 84 of the English text, that is approximately 90 in the German text, there is reference to the Euthanasia Program. It is to the general effect that people arc talking about it, and that there is fear on his part that high ranking church officials are becoming concerned.
The next document, NG-582, which is to be found on page 86 of the English text, and on page 91 of the German text, will be when introduced, exhibit 398. This is a letter from the Attorney General of Duesseldorf, dated 30 March 1941. It is addressed to Dr. Schlogelberger, and it concerns the peoples feeling so far as the Attorney General was able to gather from letters and rumors that have reached him on the Euthanasia Program.
We offer the document NG-582 as exhibit 398.
It is clear from the photostatic copy that this letter is not complete. It is not complete for reasons that the original which we have is not complete. And, the document which appears in the English book reflects the condition of the photostatic copy of the original. So, NG-582 will be offered as exhibit 398 as an incomplete copy of a letter from the Attorney General of Duesseldorf to Dr. Schlegolberger.
THE PRESIDENT: I take it that this was the best copy that was found or captured.
MR. KING: I cannot give you the complete story on that particular letter at the moment. I can only guess at whet happened, and I do not think you would be interested in that.
DR. BEHLING: We are concerned with this letter, apart from the fact it is not complete, but there is no signature. One does not know, therefore, whether it was sent out by the Prosecutor at Duesseldorf or who signed it, and whether this is an official document at all.
MR. KING: Your Honors, I think it is quite apparent from the form of the letter that it was sent by the General Prosecutor's Office in Duesseldorf, since the letterhead is from that office.
THE PRESIDENT: It is marked "registered"; did you observe that?
MR. KING: I beg your pardon.
THE PRESIDENT: It is marked "registered"; did you observe that?
MR. KING: Yes, that appears on the original. It is quite true because it is incomplete, does not show a signature, but from the fact that it does show quite clearly on the original photostat, the letterhead of the Attorney General in Duesseldorf. I think that is, at least, a presumption that it came from that office. We are not saying that it was actually signed by the Attorney General or Generalstaastanwalt, because that we do not know. We only say that is a presumption that it came from that office, and of course, it is quite clear that it was addressed to Dr. Schlegelberger.
JUDGE BRAND: Does the photostat appear to be a photostat of an office copy of the original?
MR. KING: It is very difficult to tell; if I were to venture a guess, I would say it is a photostat of the original, since there are pencil lines showing on either edge of the margin, as one underlines - underscores - a particular sentence in a letter received, but that is certainly not evidence, because it is only an observation has no real evidentiary value.
DR BEHLING (For defendant Schlegelberger): I also ask to take into consideration that this letter does not have any receiving stamp, any public stamp, of the Ministry of Justice. It is the custom, in general - it was the custom that every letter that was received by the Ministry of Justice had that stamp on it. That stamp roads: "Reich Ministry of Justice", and then there is the date, and in the third line, the inclosures that may have come with the letter. Since that stamp, which had to be there, in every office, is missing, I believe that in the case of this document we have here a copy, which may have been found in Duesseldorf, and under certain circumstances may represent this draft of a letter which was intended by the General Prosecutor, but does not give us any certainty that the letter in question was, in fact, sent to the Ministry of Justice, and would then be Undersecretary Schlegelberger. Therefore, I do not consider it to have any probative value.
MR. KING: I can not say this particular copy was not found in Duesseldorf, but in the files of the Ministry of Justice in Berlin.
THE PRESIDENT: As a captured document, it has probative value, however incomplete; less value, of course, than if it had the signature or the stamp on it. But under the rules, being a captured document, it will have probative value, and it will be received for what it is worth.